New Rules and Guidance for Requiring Workplace Vaccination

The Government has made a number of announcements about mandatory vaccination in the workplace in order to prepare businesses and organisations to safely open up. In addition to this, WorkSafe has issued some guidance as to how health and safety assessments are to be conducted by employers in order to determine whether certain roles should be vaccine mandated.

Last week, the Government announced that legislation will be urgently passed to require vaccinations for all workers at businesses where customers must present Vaccine Certificates in order to access their services. This will include all close contact businesses such as hairdressers, gyms and hospitality businesses.

In addition, the Government has announced that a health and safety risk assessment will be legislated, which an employer can use to determine whether to mandate vaccination in a particular workplace.

If vaccination is mandated for a particular workplace and an employee is terminated because they refuse vaccination, an employer is required to provide the employee with a four week paid notice period, which is intended to give the employee time to reconsider.

Employers must also provide employees with paid time off to get vaccinated and are also required to keep records of their employee’s vaccinations.

The Government has also extended the Covid-19 Public Health Response (Vaccinations) Order 2021 (“the Order”) to cover workers and volunteers in education and the majority of healthcare and disability workers, in addition to frontline workers. However, the vaccination deadlines have been extended to 15 November 2021 for the first dose and 1 January 2022 for the second dose. If an employee fails to meet these deadlines, they will be terminated (with four paid weeks notice).

For roles that are not covered by the Order, employers must undertake a health and safety risk assessment before making vaccination mandatory. While we wait for the Government to legislate a framework for these assessments, WorkSafe has issued some guidelines (found here), which give an idea of what the legislative framework will look like.

WorkSafe says that assessments should focus on the role and the work that the role conducts and not on the individual employee. They have identified a number of generic questions (e.g. How many people does the employee come in contact with?) which should be asked in addition to more questions specific to each role and industry practice. Mitigating factors, such as mask wearing, should also be considered. Throughout such assessments, employers should consult in good faith with employees.

If you would like advice on whether you can or must mandate vaccinations in your workplace, or on how best to conduct a health and safety assessment (legal advice is highly recommended for this complex task), please get in touch.